Kay v. Churchill
New York Supreme Court
Motion to strike on t the answer of the defendant, Sarah N. Churchill, as sham. The action was brought for the foreclosure of a mortgage which had become dne by reason of a failure to pay interest and the election of the plaintiff to treat it as a forfeiture.
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Motion to strike on t the answer of the defendant, Sarah N. Churchill, as sham. The action was brought for the foreclosure of a mortgage which had become dne by reason of a failure to pay interest and the election of the plaintiff to treat it as a forfeiture. The answer, which was wholly on information and. belief, admitted the making of the mortgage as alleged in the complaint; but set up affirmatively that it was made for a sum less than that stated in the consideration, and that it was usurious. As to the remaining allegations of the complaint, the answer alleged want of knowledge or…
1Opinion of the CourtIngalls, J.
This action is instituted to foreclose a mortgage, and the defendant, above named, has interposed a separate answer.
This motion is made bjr the plaintiff under section 538 of the Code of Civil Procedure, to strike out such answer as sham.
In regard to the affirmative defense interposed by the defendant, the facts stated in the affidavits read in support of the motion show very clearly that such defense is false, and should not be allowed to remain to delay and embarrass the plaintiff’s action.
Mo answering or explanatory affidavits have been produced by the defendant, not even an affidavit of…
2Cases cited3 opinions
- Thompson v. . the Erie Railroad CompanyNew York Court of Appeals · 1871
- Kay v. . WhittakerNew York Court of Appeals · 1871
- Fosdick v. GroffNew York Supreme Court · 1861
3Cited by2 opinions
- Robert Gere Bank v. InmanNew York Supreme Court · 1889
- Dessar v. GuntherNew York Supreme Court · 1917